Com. v. Stimphont, V. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
VICKENS STIMPHONT :
:
Appellant : No. 160 MDA 2019
Appeal from the Judgment of Sentence Entered December 21, 2018
In the Court of Common Pleas of Schuylkill County Criminal Division at
No(s): CP-54-CR-0001132-2018
BEFORE: DUBOW, J., NICHOLS, J., and MUSMANNO, J.
JUDGMENT ORDER BY DUBOW, J.: FILED JANUARY 02, 2020
Appellant, Vickens Stimphont, appeals from the December 21, 2018
Judgment of Sentence entered in the Schuylkill County Court of Common
Pleas. As Appellant’s Notice of Appeal from the Judgment of Sentence is
untimely, we are compelled to quash this appeal.
On October 22, 2018, a jury convicted Appellant of Possession With
Intent to Deliver a Controlled Substance and related charges. On December
21, 2018, the trial court sentenced Appellant, inter alia, to an aggregate term
of 28 to 56 months’ incarceration. Appellant did not file a post-sentence
motion.
On January 28, 2019, Appellant filed an untimely pro se Notice of
Appeal. On February 20, 2019, after a hearing, the trial court appointed
counsel for Appellant. Appellant and the trial court both complied with
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Pa.R.A.P. 1925.1 In its Pa.R.A.P. 1925(a) Opinion, the trial court concluded
that Appellant’s Notice of Appeal was untimely.
On June 18, 2019, counsel filed an Anders Brief and a Motion to
Withdraw as Counsel. In the Anders Brief, counsel for Appellant raises a
single issue for our review: “Was trial counsel ineffective in representing
Appellant?” Anders Br. at 5.
On November 8, 2019, this Court issued a Rule to Show Cause why the
appeal should not be quashed as untimely. Order, 11/8/19. This Court
afforded Appellant ten days to respond, but he failed to do so.
As an initial matter, we must determine whether we have jurisdiction to
consider the merits of this appeal, as we “lack jurisdiction to
consider untimely appeals, and we may raise such jurisdictional issues sua
sponte.” Commonwealth v. Capaldi, 112 A.3d 1242, 1244 (Pa. Super.
2015) (citation omitted). “Time limitations on the taking of appeals are strictly
construed and cannot be extended as a matter of grace.” Commonwealth
v. Perez, 799 A.2d 848, 851 (Pa. Super. 2002) (citation omitted).
As stated above, Appellant’s pro se appeal, filed 39 days after
Appellant’s Judgment of Sentence, is facially untimely. See Pa.R.A.P.
108(d)(2) (stating where no post-sentence motion is filed, the day of
imposition of sentence in open court shall be deemed to be the date of entry
of judgment of sentence); Pa.R.A.P. 903(a) (stating the notice of appeal shall
____________________________________________
1 Appellant filed a counseled Pa.R.A.P. 1925(b) Statement of Errors
Complained of on Appeal.
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be filed within 30 days after the entry of the order from which the appeal is
taken). Nevertheless, under the “prisoner mailbox rule,” a pro se appeal by
a prisoner is deemed filed on the date the prisoner delivers the appeal to
prison authorities for mailing, even if the appeal is actually received after the
deadline for filing an appeal. See Commonwealth v. Chambers, 35 A.3d
34, 38 (Pa. Super. 2011). Pursuant to the rule, this Court is “inclined to accept
any reasonably verifiable evidence of the date that the prisoner deposits the
appeal with the prison authorities.” Perez, 799 A.2d at 851 (citation omitted).
This includes, but is not limited to, a cash slip, a postmarked envelope, an
affidavit, or any evidence of “routine practices of prison authorities regarding
the pick-up and delivery of the mail and any records regarding the dates of
the deposit of outgoing mail[.]” Chambers, 35 A.3d at 40.
Here, however, Appellant has not provided any documentation in
response to our Rule to Show Cause Order, and the certified record contains
no cash slips, postmarked envelopes, affidavits, or any other documentation
indicating when Appellant deposited his pro se Notice of Appeal with prison
authorities. Although the pro se Notice of Appeal is self-dated January 22,
2019, that does not adequately demonstrate that Appellant mailed it from
prison on that date. As Appellant’s Notice of Appeal is facially untimely and
Appellant makes no attempt to argue that we have jurisdiction to consider his
claims, we are constrained to quash. See Capaldi, supra at 1244.
In light of our disposition, the Motion to Withdraw as Counsel is denied
as moot.
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Appeal quashed. Motion to Withdraw as Counsel denied.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 01/02/2020
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